Zulu v National Bargaining Council for the Road Freight Industry and Others (D1219/13) [2016] ZALCD 7 (25 February 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case no: D1219/13

MOSES ZULU

Applicant

and

NATIONAL BARGAINING COUNCIL FOR

THE ROAD FREIGHT INDUSTRY

First Respondent

COMMISSIONER ERIC DU PREEZ

Second Respondent

TANKER SERVICES

Third Respondent

Heard: 25 February 2016

Delivered: 25 February 2016

EX TEMPORE JUDGMENT

WHITCHER J

[1] This is an opposed application to review and set aside the award[1] in which the Second Respondent (the Commissioner) found the dismissal of the Applicant by the Third Respondent (the Respondent)

substantively fair.

[2] The circumstances leading to the dismissal of the Applicant were common cause. The Applicant was employed by the Respondent in 2002 as an extra heavy duty Driver. The Applicant received a load of fuel in a sealed container truck which he transported to Witbank. The fuel was offloaded at Witbank Shell Depot between 15h50 and 16h30. A shortfall of 3700 litres of fuel was found between what the Applicant received at the beginning of his trip and what was eventually received by Shell Witbank. The Respondent suffered damages of R40 000.00 because of the loss.

[3] The Applicant was dismissed after a disciplinary hearing in which he was found guilty of not following off-loading procedures and dishonesty, the particulars being that on or about 24 December 2012 the Applicant offloaded ULP 95 at Witbank Shell, he incurred a fuel loss of 3700 litres, he failed to record the loss and he submitted falsified documentation in this regard.

[4] Before I turn to the reasoning and findings of the commissioner, it is useful to refer to case law cited by the Respondent and which

reiterate certain rules of evidence relevant to this case.

[5] In Distell Limited v CCMA & others[2] the Court reiterated the trite law that circumstantial evidence is an appropriate and “powerful tool in proving the existence of an issue in dispute”.

[6] In National Union of Mineworkers v CCMA & others[3] the Court reiterated the principle that in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability and may, by balancing probabilities, select a conclusion which seems the more natural, or plausible, conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.

[7] In Woolworths (Pty) Ltd v CCMA & others,[4] the LAC held that video footage capturing an employee concealing merchandise on her person constituted a prima facie case of dishonesty against the employee and that this then shifted the evidentiary burden to the employee. The court held that in the absence of a credible and probable explanation from the employee, the inference that the arbitrator can most reasonably draw is that the employee acted dishonestly and that the employer has discharged its onus.

[8] The LAC stated:

“… As stated earlier on, the DVD footage evidence creates a prima facie case against the employee which shifted the evidentiary burden to her to demonstrate her lawful or innocent possession or handling of the two items in questions. In my view, she dismally failed to do discharge this onus. Hence, the Commissioner ought to have found that the appellant, as the employer, discharged its overall onus of proving, on a balance of probabilities, that the employee was guilty of gross misconduct involving gross dishonesty”.[5]

[9] With these principles in mind, I turn to the grounds of review.

[10] In my view the Applicant misconceives the conduct of the Commissioner when he made statements seemingly critical and dismissive of the Respondent’s case. The Commissioner was actually performing his job as a reasonable commissioner would. He was critically analysing the evidence of the Respondent and thus applying his mind to all relevant aspects of the case.

[11] Even if these statement can be viewed as contradictory, they are not errors which are sufficient to vitiate the entire award, because the outcome must be viewed in light of all the evidence before the Commissioner; not just selective aspects of the evidence.

[12] I agree with the Respondent that the grounds of review fail to take into account the above mentioned rules of evidence and the following materially relevant facts that were before the Commissioner.

[13] Firstly, it was common cause that on 24 December 2012 the Applicant received 44 619 litres of fuel to deliver to Shell Witbank but Shell Witbank only received 41167 litres; a shortfall of 3700 litres of fuel.

[14] Secondly, the tank was sealed. And yet, 3700 litres of fuel went missing on the watch of the Applicant, an experienced fuel delivery agent.

[15] Thirdly, and most significantly, in these circumstances, the Applicant presented false documents to prove the delivery of the

fuel. The only document presented by the Applicant as proof of delivery of the fuel represented, on its face, that 44 619

litres of fuel were received by Shell Witbank. However, an examination of the document revealed that it was in fact a reprint of

a delivery notice received on 24 November 2012 from a different service provider. This document was signed by the Applicant and the Operator at Shell depot.

[16] Another document indicates that during the period recorded as the time when the Applicant was off loading fuel, an amount of only 41167 litres of fuel were received at the depot. The document is not signed by the Applicant or the Operator of Shell. The document further shows an incorrect order number.

[17] In my view, these facts, viewed together, established a prima facie case of gross misconduct against the Applicant, as set out in the charge sheet, which shifted the evidentiary burden to the Applicant to provide a reasonable explanation for his conduct.

[18] According to the record and the award, the Applicant’s explanation was that when the fuel was off-loaded he did not see the start and closing figures of the fuel off-loaded and he was not at the at the point where the Operator printed the documents. In other words, he had simply signed the document without ensuring that the figures were correct.

[19] In my view the Commissioner reasonably found this explanation questionable in light of the fact that the Applicant, as an experienced Driver, would have been well aware of the correct procedures to be adopted when off-loading fuel and in particularly

his duty to ensure that the amount of fuel off-loaded is accurately recorded. Moreover, the Applicant failed to provide a proper

explanation for the false documents.

[20] Thus, in the absence of a reasonable and credible explanation from the Applicant, the prima facie case proven against the Applicant

became conclusive proof on a balance of probabilities.

[21] In light of the above, it was not unreasonable for the Commissioner to conclude that the Applicant acted in a dishonest manner and failed in his duties as the only representative of the Respondent during the delivery of the fuel. And, as a result the Respondent incurred a substantial loss of R40 000.00.

[22] The Commissioner did not pertinently state this, but in my view, it is reasonable to conclude that the nature of the Applicant’s

conduct, coupled with the fact that he clearly failed to protect the interests of the Respondent, detrimentally affected the trust

relationship between the Applicant and the Respondent. Accordingly, the finding that the dismissal was fair was not unreasonable. The award is based on materially relevant proven facts.

Order

[23] The review application is dismissed with no order as to costs.

________________________________

Whitcher J

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv Luthuli instructed by A P Shangase & Associates Attorneys

For the Third Respondent: Adv C Goosen, instructed by Ngcingwana Inc

[1] RFBC25409, dated 30 August 2013.

[2] (2014) 35 ILJ 2176 (LC).

[3] (2013) 34 ILJ 945 (LC)

[4] (2011) 32 ILJ 2455 (LAC).

[5] At para [44].